§ 2.03 COURT-CALLED WITNESSES

• Jurisdiction: United States

§ 2.03. COURT-CALLED WITNESSES

Federal Rule 614(a), in accordance with the common law, recognizes the authority of the trial court to call witnesses on its own motion or at the behest of one of the parties.⁶ "The power to call and to interrogate court witnesses is said to be derived from the judicial system's basic functions of disclosing truth and administering justice. ... A trial judge is not captive within the case as made by the parties. He has the authority, if not the duty, to call witnesses who possess relevant information affecting the outcome of the issues when the parties decline to call them."⁷ The authority to call witnesses includes the authority to appoint expert witnesses.⁸ The federal drafters justified these powers by noting that the "tendency of juries to associate a witness with the party calling him, regardless of technical aspects of vouching, is avoided" and the "judge is not imprisoned within the case as made by the parties."⁹ The exercise of this authority is rare, however.¹⁰

All parties are entitled to cross-examine a court-called witness, and the jury should be instructed that the witness is not to be considered more credible simply because she is called by the court.¹¹ Indeed, the witness may have been called by the judge because neither party wanted to be associated with an unsavory witness of questionable credibility. Objections to the calling of witnesses by the court may be made at the time the witness is called or at the next available opportunity when the jury is absent.¹²

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Notes:

^[6] See United States v. Karnes, 531 F.2d 214, 216 (4th Cir. 1976) ("[O]rdinarily the utilization of court witnesses is a matter within the discretion of the trial judge."). But see People v. Arnold, 772 N.E.2d 1140, 1145 (N.Y. 2002) ("Although it does not appear from the record that the Trial Judge intended to give an advantage to either side, he abused his discretion in calling Sergeant Miller on a key issue when both parties chose not to. By calling Sergeant Miller, the court deprived defendant of the ability to request that the trier of fact draw a negative inference from the People's failure to produce an ESU officer during its case. Loss of that inference, coupled with the generally damaging testimony of Sergeant Miller, create a significant probability that the verdict would have been affected had the error not occurred.") (citation omitted). See generally Saltzburg, The Unnecessarily Expanding Role of the American Trial Judge, 64...